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LANDANO v. RAFFERTY

September 29, 1987

Vincent James Landano, Petitioner,
v.
John J. Rafferty, Superintendent, Rahway State Prison, and Irwin I. Kimmelman, Attorney General of the State of New Jersey, Respondents



The opinion of the court was delivered by: SAROKIN

 The murder of a police officer is a tragic event, not only for the loss sustained by the officer's family, but because it is the ultimate symbol of lawlessness. That tragedy is compounded however, if there is a risk that an innocent person has been convicted of such a despicable crime. The record in this case demonstrates that there is just such a risk, but because of binding precedent this court is powerless to grant the relief which petitioner seeks and to which this court believes he is entitled.

 A critical prosecution eyewitness, a public spirited citizen who came forward with evidence immediately after the crime, now once again has voluntarily come forward to cast doubt upon petitioner's conviction and his own testimony which may have caused it.

 Although discussed in more detail hereafter, the witness, Raymond Portas has testified under oath that (1) when he was first asked to identify the driver of the automobile (the driver being identified by others as the murderer) some months after the crime from a photo array, he selected someone other than the petitioner Mr. Landano; (2) that photograph was removed by the police never to be seen or identified again; (3) that incident is corroborated by the fact that two photos are missing from that array and their absence is unexplained; (4) thirteen days later while waiting to testify, Mr. Landano and his attorney walked by Mr. Portas and he did not recognize Mr. Landano; (5) an officer informed Mr. Portas with respect to these two persons that one was "our man"; (6) even then, Mr. Portas did not know which of the two was the alleged perpetrator; (7) he only made that determination by process of elimination -- when the lawyer rose to speak, he concluded the remaining person was the one he was to identify, which he did.

 His qualms of conscience were not slow in festering. Immediately upon the conclusion of his testimony he considered speaking to the judge. Doubting its propriety, he sought out the counsel of a priest, who assured him that the police knew what they were doing and not to be concerned. His concerns were allayed but never completely extinguished. He undoubtedly took comfort from the fact that other evidence existed which supported the conviction which was subsequently entered.

 However, years later, in reading a magazine article about the case, he learned that much of the other evidence was suspect and realized that his testimony rather than being merely corroborative was crucial to the outcome. All of his qualms were reawakened. Again acting out of the purest and most honorable of motives he went not to the defendant or his counsel, but rather to the prosecution to express his concerns and doubts. The prosecutor's office turned a deaf ear to his entreaties, and then and only then, did he communicate with the defense after first tracking down the author of the magazine article to ascertain defense counsel's identity.

 True there are some discrepancies and inconsistencies in Mr. Portas' testimony and contrary evidence offered by the prosecution. But on the critical facts Mr. Portas has not waivered since he brought these matters to the attention of the parties. He is an honorable, intelligent and obviously conscientious person. He has no reason or motive to lie. His self doubts were not the result of a lengthy process or intercession by anyone, but followed immediately upon his testimony -- even before the conviction.

 This court conducted a hearing and found the testimony of Mr. Portas to be believable. If the jury had heard what he has now revealed, it might never have convicted the petitioner. On the other hand, the state court found Mr. Portas' testimony on these matters to be incredible; and denied a new trial. The obligation of this court to defer to the factual findings of the state court makes it impossible to grant the relief sought. The court candidly admits an exhaustive search for grounds to grant the writ, but could find none without violating the court's oath to follow existing precedent. In upholding the law, the court fears that a great injustice has occurred and respectfully invites reversal of its decision.

 PROCEDURAL HISTORY

 Petitioner, Vincent James Landano, comes before this court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

 On April 6, 1977, the prosecution of codefendants Forni and Reen, each of whom was then confined in New York and contesting extradition, was severed from that of petitioner and codefendant Roller.

 On April 18, 1977, Roller entered a plea of non vult to the felony murder charge alleged in the first count of the indictment pursuant to a plea agreement reached with the Hudson County Prosecutor. The agreement provided that Roller would testify against petitioner at trial.

 The following day, April 19, 1977 petitioner's trial began before the Honorable Maurice A. Walsh, Jr., J.S.C., and a jury. Following 19 days of trial, on May 17, 1977 petitioner was found guilty on all counts. As a result of the jury's verdict, the court sentenced petitioner to life imprisonment on the felony murder count and a consecutive seven to fifteen year term for the remaining offenses.

 Petitioner filed a Notice of Appeal on June 29, 1977. On September 26, 1978, petitioner filed a motion in the Superior Court of New Jersey, Appellate Division seeking remand to the trial court for consideration of a motion for a new trial on the basis of newly discovered evidence. An order granting that motion was subsequently entered by that court on October 17, 1978.

 On November 20, 21 and 27, 1978 evidentiary hearings pursuant to petitioner's new trial application were conducted before Judge Walsh. By opinion and order dated December 1, 1978, Judge Walsh denied petitioner's application. Thereafter, on March 21, 1980, the Superior Court of New Jersey, Appellate Division denied both petitioner's direct appeal and the consolidated appeal from the denial of a motion for new trial. Landano's petition for certification was denied by the New Jersey Supreme Court on July 8, 1980. See State v. Landano, 85 N.J. 98, 425 A.2d 264 (1980).

 On March 31, 1982, petitioner filed a verified petition for post-conviction relief and supporting brief. Hearings pursuant to this petition were conducted before the Honorable Joseph P. Hanrahan, J.S.C. on June 16, September 22, October 6 and 28, and November 17, 1982. Judge Hanrahan issued a series of letter opinions concerning the numerous issues raised and ultimately denied the relief sought in an order dated January 4, 1984.

 Petitioner appealed Judge Hanrahan's ruling to the Appellate Division. On January 30, 1984, that court denied petitioner's appeal. On June 13, 1984, the Supreme Court of New Jersey denied certification.

 On October 10, 1985, petitioner filed the instant habeas corpus petition. Having properly exhausted the available state remedies, petitioner's application is ripe for disposition by this court.

 As grounds for relief petitioner alleges: (1) that his due process rights to a fair trial were infringed by the admission of Raymond Portas' identification testimony; (2) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of codefendant Allen Roller; (3) that the state unlawfully suppressed exculpatory and material evidence that would have impeached the testimony of Jacob Roth, victim of the armed robbery; and (4) that the state court's coercive charge to the jury violated the petitioner's Sixth Amendment right to an impartial jury. *fn1"

 The underlying facts may be distilled from the many state court opinions. The events leading up to the crime for which petitioner was convicted involved the activities of a "motorcycle gang" known as "The Breed". According to testimony at trial by Breed members and affiliates, the Breed frequently planned and executed armed robberies in the Staten Island area. Testimony at trial revealed that in June 1976 Allen Roller, president of The Breed's Staten Island chapter, together with Victor Forni, not a "Breed" member but reputedly responsible for organizing most Breed criminal endeavors, conceived a plan to rob the Kearny, New Jersey Check Cashing Service owned and operated by Jacob Roth.

 Though it was undisputed at trial that petitioner, Vincent James Landano, was neither a Breed member nor a Breed affiliate, co-defendant Roller testified that petitioner had been specifically recruited for this job when another Breed affiliate refused to participate. Roller admitted that Forni and not petitioner was responsible for orchestrating the Kearny robbery, but Roller vigorously denied Forni's participation in the crime's execution. Roller's testimony revealed that petitioner was a long standing friend of Forni's and that Forni had suggested recruiting Landano for this job.

 In the early morning hours of August 13, 1976, Allen Roller together with a "dark-haired" associate who Roller identified as the petitioner arrived at the Hi-Way Cash Checking Service. Roller testified that he approached the window of the Roth check cashing trailer, forced his way into the trailer and controlling the occupants with his gun, proceeded to steal the available cash.

 During this time a Newark patrol car driven by Patrolman John Snow arrived in the Roth parking lot. The dark haired perpetrator approached the vehicle and opened fire at close range killing Officer Snow. Thereupon the perpetrator reached inside the vehicle and removed an attache case containing $ 46,000 intended for delivery to Hi-Way Checking.

 Roller testified that the two immediately returned to their vehicle and sped away from the crime scene with petitioner driving and Roller in the back seat. According to Roller, petitioner confessed upon return to the car that he had had to "ice [or waste] the cop". It was later discovered that the gun used to kill Officer Snow was Forni's gun.

 Joseph Pasciutti, an employee of an adjacent warehouse, testified that he had witnessed a dark haired man approach the patrol car in The Hi-Way Check Cashing parking lot. Pasciutti testified that he had momentarily turned away from the crime scene and that his back had been turned when he heard three or four gunshots. When Pasciutti redirected his attention to the check cashing facility, he testified that he saw a Chevy pulling away and that the dark haired perpetrator was driving. Pasciutti was not able to identify petitioner as the dark haired perpetrator.

 In an effort to escape the crime scene, the vehicle proceeded through Kearny and came upon a blocked intersection. The driver's frantic efforts to escape the traffic attracted the attention of Raymond Portas, a truck driver whose truck was stopped in the intersection. Portas testified that he viewed the vehicle manuever onto nearby train tracks and proceed to drive along the rail. Though unable to identify Roller as the vehicle's passenger, Portas testified at trial that petitioner was the driver of the car.

 The evidence presented against petitioner at trial included Roller's testimony naming Landano as his partner in crime; Pasciutti's testimony that the dark haired perpetrator responsible for killing Officer Snow was also the driver of the getaway car and Portas' identification of petitioner as the driver of the vehicle identified as the getaway car.

 DISCUSSION

 I. The Portas Identification

 In bringing this habeas corpus application, petitioner alleges a deprivation of his due process right to a fair trial as a result of the improper admission of Raymond Portas' identification testimony. In large part, the basis for petitioner's motion results from information discovered subsequent to trial as the result of Mr. Portas' recantation of his trial testimony. *fn2"

 The court begins its analysis by noting that Raymond Portas was a critical prosecution witness. Through the testimony of Joseph Pasciutti, an employee of an adjacent warehouse who witnessed the crime, the state was able to establish that the "dark-haired" perpetrator, responsible for killing Officer Snow, was the driver of the getaway car. See Trial Transcript of April 28, 1977, VIIIT at 90-92. Pasciutti however, was unable to identify petitioner as the driver; and, in fact, described the driver as having "curly hair" and "no moustache" whereas a photo or petitioner taken on the day of the crime, some hours after the shooting occurred, reveals Landano to have had long straight hair and a prominent, bushy moustache. See Trial Exhibit D-13. Raymond Portas was the only witness presented at trial who was able to identify petitioner as the driver of the car and thus create the inference that petitioner had killed Officer Snow.

 Mr. Portas, employed as a truck driver in August 1976, testified at trial that on August 13, 1976 he had witnessed petitioner and another passenger as they drove through an intersection in Kearney. Portas testified that his attention had been drawn to this car because of its erratic driving pattern. The driver, seeking to avoid a blocked intersection, manuevered the car onto nearby railroad tracks and proceeded to drive along the parallel tracks. According to Portas, due to the vehicle's backward maneuvering he had a more direct view of the driver than the passenger and was able to view the driver full face at a distance of approximately fifteen feet for a minute and a half. See Transcript of Portas Voir Dire testimony, April 25, 1977, at 48-50; Trial Transcript at 8.45.

 At trial it was established that prior to his court appearance, Mr. Portas had had two opportunities to view photographs in an effort to identify the perpetrators of the crime. The first viewing took place on August 13, 1976, the day of the crime, at which time Portas was asked to identify the backseat passenger. The record reflects that Portas erroneously identified William Applegate, and not co-defendant Roller.

 However, of critical significance to the state's case, Portas testified that he was able to positively identify petitioner's photo from the second array. Trial Transcript at 8.45. *fn3" Portas testified that he believed petitioner to be the driver of the car. Trial Transcript at 8.46:1. In response to the prosecutor's inquiry "Do you see the man in court today who you believe to be the driver of the vehicle?", Portas responded affirmatively and identified the petitioner. Trial Transcript 8.46:9-14.

 On cross-examination, Portas testified that after having identified petitioner's photo (marked S-2A for identification) in the prosecutor's office, a member of the prosecutor's staff present in the room confirmed the identification responding "Yes. That's him". Trial Transcript at 8.62. On redirect examination however Portas averred that he was not given any indication of which photograph to select prior to his independent identification and that any confirming remark followed his independent selection. Trial Transcript at 8.63. Furthermore, the prosecutor elicited testimony establishing that Portas' in-court identification of the petitioner was based on his "recollection of the ...


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